Cornell College v. Iowa County

32 Iowa 520 | Iowa | 1871

Day, Oh. J.

Appellants base their right .to intervene in the present action upon the provisions of section 2930 of the Ee vision.

This section is as follows: “ Any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in the success of either of the parties to the action, or an interest against both. An intervention takes place when a third, party is permitted to become a party to an action between other persons, either in joining the plaintiff in claiming what is sought by the petition, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding any thing adversely to both the plaintiff and defendant. A third person may intervene either before or after issue has been joined in the cause, and before the trial commences.”

But one condition confers the right to intervene, and but one limitation is imposed upon it. That condition and that limitation are, that the person seeking the right shall home cm interest in the matter in litigation. Whenever this interest exists, the right attaches, and it attaches in no case where this interest is not found. If these petitioners, Simply as tax payers of the county, possess this interest, every other tax payer in the county possesses the same interest, and has the same right to intervene. And if a tax payer, by virtue of his interest as such, may intervene in this action, he may do so in every suit instituted against the county, for he must contribute to the payment of every judgment so recovered. And this he may do without reference to the amount in controversy, for if the right exists it rests upon principle and is not dependent upon the magnitude of the controversy. Now we apprehend that appellant’s counsel would hesitate long before he would claim that, when a county is sued for the value of a cord of wood, every tax payer in the county has a right to become, upon his own motion, a party to the controversy. Tet this must follow if the right to intervene under this section can be predicated upon the mere interest of a tax payer.

We entertain no doubt that, where the board of supervisors assume the exercise of powers not conferred upon them by law, or fail to discharge their duties, so as to involve a breach of trust, a court of equity will, at the instance of a tax payer, afford appropriate relief. Dodge v. Woolsey, 18 How. (U. S.) 331; French v. Gifford et al., 30 Iowa, 148. And it may be that where such a delinquency upon the part of the board of supervisors is shown, a tax payer would be allowed, in an action against the county, to intervene and interpose an appropriate defense. But no facts evincing such a dereliction of duty are averred in the present case. No fact is alleged from which it can be inferred that the board of supervisors did not act in good faith and for the supposed best interests of the country. It is true, it is alleged that the filing of the agreement for judgment was wrongful and without authority; but this allegation is of a mere legal conclusion, and not of the facts upon which such conclusion is based. The cross-bill does not aver that the supervisors had been requested to defend, and had refused or neglected to do so, nor that th,ey had personal knowledge of the decree enjoining the collection of said coupons, nor that any other fact, evincing bad faith, existed. The view of petitioners seems to be, that, under the provisions of section 2930 of the Revision, their interest, as tax payers alone, entitles them to intervene. In support of this view we are referred to the case of Beardsley v. Smith, 16 Conn. 367. In Connecticut it is held, that the inhabitants of towns and other quasi corporations are parties individually, as well as in their corporate capacity, to all actions in which the corporation is a party. But this doctrine is the corollary of another which there obtains, that a judgment against a town is a judgment against the inhabitants of the town, and the execution may be levied upon the private property of any one of them, at the discretion of a creditor.

As a necessary consequence of such a liability, it is held, that every inhabitant of a town has a right to appear and defend, in any action at law, against it. Beardsley v. Smith, supra; Town of Union v. Crawford, 19 Conn. 333. It is too obvious for remark that the reason of the rule does not exist here.

In denial of the general right of an individual member of a corporation to prosecute or defend in its behalf, see the following cases cited by appellee. Smith v. Hurd et al., 12 Metc. 377; Samuels v. Halliday, 1 Woolw. 417; also Angelí and Ames on Corporations, § 279.

In our opinion, the court did not err in denying the petitioners the right to intervene.

Beck, J., dissenting.

Affirmed.